Gun-permit map spurs new laws to curb information

Sunday

Mar 10, 2013 at 2:00 AM

The decision by a Westchester County newspaper to publish an interactive map of handgun permit holders has changed the open-records landscape across the country. The Journal-News published a story and posted

HEATHER YAKIN

The decision by a Westchester County newspaper to publish an interactive map of handgun permit holders has changed the open-records landscape across the country. The Journal-News published a story and posted the interactive map — click on a dot to read the name and address of a permit holder in Rockland and Westchester counties — in the aftermath of the Newtown, Conn., mass shooting, when rhetoric was flying.

The Journal-News' position was that the paper was providing public information to its readers, to further the public discussion of how we protect our communities. But debate centered on whether publishing the names and addresses violated privacy and endangered people. The outcry — public and political — was quickly folded into Gov. Andrew Cuomo's new gun laws, the NY-SAFE Act, as a provision that allows permit holders to opt out of having their information disclosed if they believe disclosure will endanger them.

The Journal-News backlash was a national phenomenon, said Aaron Mackey, a lawyer with the Reporters Committee for Freedom of the Press.

Before the story ran, 28 states treated gun licenses as confidential, and about a dozen released restricted information — such as name and ZIP code. Another dozen, including New York, considered the records public.

Since the Journal-News story, 10 states have passed new laws restricting access to that data.

At New York's Committee on Open Government, lawyer and open-records guru Bob Freeman said he's gotten about 150 calls about the gun licensing issue, many of the calls from across the United States. The first week after the map ran, Freeman said, the question was whether the paper had a right to publish the data. Answer: yes.

"The Penal Law has specified for years that the names and addresses are public," he said. As for now, he said, "My belief? The choice not to opt out is the equivalent of consent" to releasing the data, as is failure to opt out.

The presumption of open records is strong with New York's Freedom of Information Law, which is geared toward giving citizens a transparent view of government and what government does with public funds.

"The problem with the legislation, as it was passed — one, the opt-out is really broad," said Diane Kennedy, president of the New York News Publishers Association.

It could have been worse from the perspective of public access to information. The state Senate and governor were originally pushing to completely exempt handgun permit information from public disclosure.

Kennedy said news organizations can use data such as handgun permits to determine if government is doing its job fairly, whether there's favoritism at work or whether there are laws that aren't being enforced.

"Journalism is research," Kennedy said.

State Sen. John Bonacic said the Freedom of Information Law serves a positive purpose, and he's cautious about limiting access to public documents. But in his view, having names and addresses available on pistol permit data raises too many safety concerns.

"The public, at least in calls to my office, made it clear that they felt there was no reason to publish data allowing for pistol permit mapping, and that more privacy rights should be given," Bonacic said. "What the Journal-News did, in publishing a map of pistol permit holders, had no legitimate reasoning behind it. The fact that nobody else (that I know of) in the media did the same thing, tells me that most in the media agree that the Journal-News' action lacked a legitimate basis; was not particularly newsworthy; was an invasion of personal privacy; and made some New Yorkers less safe. As a result, the Legislature acted to prevent continued mandatory public disclosure."

"Those are real issues," she said, and the opt-out provision is proving popular.

"Right now, there are a lot of people going to (Sullivan County Clerk) Dan Briggs to pick up the paper to opt out," Gunther said. "I'm glad that you have a choice."

The Internet has changed the playing field on public records, said Paul Stephens, director of policy and advocacy for the Privacy Rights Clearinghouse. Years ago, most public records were kept in filing cabinets or on microfiche, in "practical obscurity," he said. They were available to people who were determined to look at them, but those people had to physically go to a government office to look at the records.

"Comes along the Internet, and you have the ability to post information online," Stephens said, where it's available to anyone with a casual interest.

In this climate, he said, we need to balance the considerations: "the right to know, versus the right of privacy of those individuals whose records are maintained by the government."

Gunther compared the NY-SAFE Act's opt-out provision to the choice of having an unlisted phone number.

"We have to enable people to have some sense of privacy," she said.

Gunther is the sponsor of an Assembly bill that would exempt hunting and fishing permit applications from disclosure. The bill has been around since 2006, she said, and was written at a time when identity theft was a huge issue. The hunting and fishing permit application contains a lot of detailed information on physical description and health issues that shouldn't be made available to would-be identity thieves, she said.

"Our concern is that it's been treated like it's entirely public or entirely private," said Mackey of the Reporters Committee for Freedom of the Press. "There's not really discussion about the public interest, or the good reasons for having these records be public."

He cited a 2011 New York Times story that compared North Carolina's concealed-carry permits with criminal records. The Times determined that because of a communication breakdown, sheriff's departments weren't always rescinding the concealed-carry permits when people were convicted of crimes.

Where government conveys a privilege — say, gun licenses — the public has a right to know if the permits are being administered fairly and properly, he said. Otherwise, "you're letting the government essentially conduct that business in the dark."

NYNPA's Kennedy said she hopes editorial pressure can lead to amendments to keep some of the handgun permit data, such as the holder's ZIP code and the reason for opting out of disclosure, publicly accessible.

"We'll have to call them on it if they scale back access to public information," Kennedy said.